In this appeal, we construe Code ? 38.2-2206 to
determine whether, in a single vehicle accident, the uninsured/
underinsured motorist (UM/UIM) endorsement of a tortfeasor’s
automobile liability insurance policy is to be considered when
determining the extent to which the tortfeasor’s motor vehicle is
underinsured.

The facts are not in dispute. On April 9, 1994, Bernard J.
Trisvan, Jr., was a passenger in a car driven by Marcus Wilson
Smith. The car overturned, and Trisvan suffered injuries
resulting in damages exceeding $125,000. Smith’s vehicle was
insured by Integon Indemnity Corporation (Integon), with policy
limits of $25,000 per person for bodily injury liability and
$25,000 per person UM/UIM coverage. Trisvan was insured under a
family automobile policy issued to his father by Agway Insurance
Company (Agway) with a limit of $100,000 for UM/UIM coverage.

Trisvan filed a personal injury action against Smith and
served Agway as his underinsurance carrier. In settlement of the
personal injury action, Integon paid Trisvan the $25,000
liability limit under Smith’s policy. Agway then tendered Trisvan
$75,000 and filed a declaratory judgment action seeking a ruling
that $75,000 was the total amount it owed Trisvan under Trisvan’s
UM/UIM policy. Trisvan, in his grounds of defense and
counterclaim, asserted that the total amount of available UM/UIM
coverage was $125,000 and, therefore, Agway was liable for
$100,000 rather than $75,000. The trial court, on cross motions
for summary judgment, concluded that Smith’s vehicle was
underinsured by $75,000, not $100,000, and that Trisvan was
therefore only entitled to $75,000 from Agway. We awarded this
appeal.

In this case, we are not concerned with construing the terms
of an insurance policy to determine whether an applicant is
entitled to recovery. Trisvan did not seek recovery from Integon
under the terms of the UM/UIM endorsement in Smith’s policy and
counsel for Trisvan stated at oral argument that he could not
recover under that portion of the policy because of the policy
limits. The sole question here requires interpretation of a
portion of ? 38.2-2206, regarding the method for
calculating the amount by which a vehicle is underinsured.

Since 1982, ? 38.2-2206 has required that automobile
liability insurance policies issued in Virginia include an
endorsement which obligates the insurer to pay the insured for
damages caused by the operation or use of an underinsured motor
vehicle. Subsection (B) of that section provides that a motor
vehicle is considered underinsured:

when, and to the extent that, the total amount of
bodily injury and property damage coverage applicable to
the operation or use of the motor vehicle and available
for payment for such bodily injury or property damage,
. . . is less than the total amount of
uninsured motorist coverage afforded any person injured
as a result of the operation or use of the vehicle.

Trisvan asserts that, in construing this provision, the
legislature’s use of the word "total" commands that
even in a single car accident the driver’s UM/UIM coverage always
be stacked onto other UM/UIM coverage. According to Trisvan, the
purpose of the 1982 amendments to ? 38.2-2206 was to "increase
the total protection afforded to insurance claimants injured
by negligent motorists. See Nationwide Mutual Insurance v.
Scott, 234 Va. 573, 363 S.E.2d 703 (1988)." Therefore,
Trisvan reasons, the General Assembly must have intended that, in
calculating the extent to which a vehicle is underinsured, a
driver’s UM/UIM insurance would be considered to be
"afforded" to his passengers even if the driver is the
sole tortfeasor. We disagree.

The increased insurance protection for injured claimants, to
which Trisvan refers, was not an arbitrary expansion of recovery
options. The 1982 amendments were enacted in response to a
specific anomaly which had arisen following the adoption of
mandatory uninsured motorist endorsements in automobile liability
insurance policies. As explained in Scott, a person
injured by an uninsured motorist could realize greater financial
protection than if injured by an insured motorist, where the
injured party had elected uninsured motorist coverage in an
amount greater than the liability limits of the insured
tortfeasor. 234 Va. at 575-76, 363 S.E.2d at 704. The General
Assembly in mandating the underinsurance endorsement corrected
this anomaly by allowing a claimant to access the
"over-insurance" in his UM/UIM endorsement, even if the
tortfeasor was insured. This legislation was not enacted to
expand protection to injured parties generally.

Trisvan’s construction of ? 38.2-2206(B), requiring the
UM/UIM endorsement applicable to the tortfeasor’s motor vehicle
to be stacked onto other available UM/UIM coverage, is also at
odds with other portions of ? 38.2-2206. Subsection (A) of
that section states that the underinsurance endorsement must
"obligate the insurer to make payment for bodily injury or
property damage caused by the operation or use of an underinsured
motor vehicle." The reference to damage caused by "an
uninsured motor vehicle" contemplates the existence of two
motor vehicles, not the single vehicle suggested by Trisvan, when
read in the context of the entire subsection. Subsection (A)
provides that the amount of UM/UIM coverage can either be equal
to or less than the amount of the liability coverage. It may not,
in any case, exceed the amount of the liability coverage. Thus,
when comparing the amounts of liability and UM/UIM coverage in
the tortfeasor’s policy applicable to his motor vehicle, that
vehicle could not be "an underinsured motor vehicle."[1]

The provisions of subsection (G) of ? 38.2-2206 provide
another example of the General Assembly’s intentions regarding
the use of UM/UIM coverage. That section gives the insurer a
right of subrogation for the UM/UIM payment against the person
causing the injury. Applying Trisvan’s rationale, the insurer
would have a subrogation right against its insured, the negligent
driver. We do not believe the General Assembly intended such a
result when it sought to eliminate the anomaly discussed above
and allowed an insured to access its UM/UIM insurance coverage
when injured by an underinsured motor vehicle.

For these reasons, we hold that in applying
? 38.2-2206(B), a passenger injured in a single vehicle
accident is not entitled to include the UM/UIM coverage contained
in the tortfeasor’s automobile liability insurance policy when
determining the extent to which the tortfeasor’s vehicle was
underinsured. Accordingly, we will affirm the judgment of the
trial court holding that Agway’s total liability to Trisvan is
$75,000.

Affirmed.

JUSTICE COMPTON, with whom JUSTICE KINSER joins, concurring.

I agree with the result of this appeal. However, I cannot
subscribe to the rationale employed by the majority to reach the
result.

In deciding this case, one must be careful to recognize the
distinctions among bodily injury liability insurance coverage,
uninsured motorist coverage for bodily injury, and underinsurance
motorist coverage for bodily injury.

On April 9, 1994, Trisvan, the claimant, was a passenger in a
motor vehicle operated by Smith, the tortfeasor. The vehicle left
the road because of the alleged negligence of the tortfeasor and
overturned injuring the claimant. No other vehicle was involved
in the accident.

At the time, the vehicle operated by the tortfeasor was
insured by Integon Indemnity Corporation. The policy had bodily
injury liability limits of $25,000 for each person injured and a
like amount of uninsured and underinsured motorist coverage for
bodily injury. Those were the minimum limits required by the
applicable financial responsibility statute. Code
? 46.2-472(3). Thus, the tortfeasor’s vehicle was not an
uninsured motor vehicle.

The claimant qualified as an insured under a "Family
Automobile Policy" issued to his parents by Agway Insurance
Company. As relevant here, that policy contained an endorsement
for uninsured motorist coverage for bodily injury and an
endorsement for underinsured motorist coverage for bodily injury
with a single limit of $100,000 for each person.

The claimant’s injuries resulted in damages exceeding
$125,000. Thus, Integon paid the claimant the limits of $25,000
under its bodily injury liability coverage. Agway paid the
claimant $75,000 under its uninsured/underinsured motorist
coverage for bodily injury, claiming that was the full sum it
owed.

The claimant contends he is entitled to collect a total of
$100,000 from Agway. This declaratory judgment proceeding ensued,
and was decided in favor of Agway on cross motions for summary
judgment.

The controversy must be resolved by determining the amount
that the claimant’s vehicle was underinsured under Code
? 38.2-2206(B). According to the statute, a motor vehicle
is underinsured "when, and to the extent that, the total
amount of bodily injury . . . coverage applicable to
the operation or use of the motor vehicle . . . is less
than the total amount of uninsured motorist coverage afforded any
person injured as a result of the operation or use of the
vehicle."

Here, the tortfeasor’s vehicle was an insured motor vehicle,
not an uninsured motor vehicle under the Integon policy. Thus,
the uninsured motorist coverage for the tortfeasor’s vehicle was
not coverage "afforded" the claimant. In other words,
the $25,000 Integon uninsured motorist limit may not be added
when computing "the total amount" of
"coverage" referred to in the statute to determine the
extent to which the claimant’s vehicle was underinsured.

Therefore, because the tortfeasor was insured, there is
$75,000 underinsured motorist coverage available to the claimant.
Combining Integon’s payment of its liability limits of $25,000
with Agway’s payment of $75,000 means that the claimant has
received a sum equal to his uninsured motorist limit of $100,000.
A contrary ruling, viz., that a tortfeasor’s uninsured
motorist coverage is always applicable when determining the
amount of underinsured motorist coverage available to an injured
claimant, would render meaningless the distinction in coverage
available under the uninsured or underinsured provisions of a
policy or the statute. In sum, the claimant is not entitled to
assume that the tortfeasor’s vehicle is uninsured in order to be
able to use Integon’s uninsured motorist coverage when computing
available underinsured motorist coverage.

For the foregoing reasons, I would affirm the trial court’s
judgment that Agway has fully discharged its lawful obligation to
the claimant.